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Delano brief explains opposition to solar project
Dec. 19, 2016

BY GABE LICHT
Editor

ST. PAUL, MN – A brief filed Dec. 12 with the State of Minnesota Court of Appeals lays out the city of Delano’s opposition to the Wright County Planning Commission’s June 30 approval of a solar energy farm at 3527 Highway 12, adjacent to the West Metro Business Park.

Wright County will have 30 days to respond to the brief, and oral arguments in the city’s appeal are expected to take place in late March or early April, with a decision to follow within 90 days of those arguments.

City Attorney Mark Johnson, of Gregerson, Rosow, Johnson, & Nilan, LTD, said the city’s opposition to the planning commission’s decision is twofold.

“One is, by the county’s own admission, they didn’t have the plans in front of them that are required by their own ordinances,” Johnson said. “They approved it nonetheless . . . They said they needed A, B, C, and D, and they didn’t get it.

“The second argument is it’s not consistent with the comprehensive plan for the county,” Johnson continued. “This is a transition area, meaning it is about to be annexed into the city, and the city on that side built multimillion dollar infrastructure and stubbed it up to this land with the assumption that the transition area would be coming in.”

The brief first references the comprehensive plan and outlines the US Highway 12 Corridor Land Use Plan, which the county adopted Feb. 8, 2011.

“Wright County stated ‘Proposals that conflict with the adopted plan will only be approved in extraordinary circumstances, when unique reasons justify the departure, and the basic policies and intent of the Land Use Plan are not compromised,’” the brief states.

According to the comprehensive plan, the transition area agreed to between Franklin Township and Delano included properties expected to be annexed into Delano and redeveloped between 2026 and 2031.

“Consistent or simply convenient departures from the plan without adequate justification will eventually defeat the purpose and goals of the plan,” the comprehensive plan states. “Deviations from the plan should only be made in the public interest, and not to benefit an individual or small group.”

Feb. 5, nearly five years after the comprehensive plan was approved, Gerardo Ruiz, on behalf of Minnesota Solar, submitted a 21-page conditional use permit application package to the planning commission.

Feb. 25, Ruiz submitted a 97-page conditional use permit application package that included a site plan and documents regarding erosion, sediment control, and decommissioning. The package noted foundation designs “will be provided as soon as they become available in later stages of the project development process.”

Before a March 17 planning commission public hearing, Delano, Franklin Township, and the Minnesota Department of Transporation provided input.

Delano Mayor Dale Graunke submitted a seven-page letter, plus attachments, recommending the application be denied because the property use was contrary to the goals and policies of the comprehensive plan and did not satisfy the criteria established in the zoning ordinance.

The Franklin Township Board submitted a response form opposing the application.

Mark Renn, a MnDOT roadway regulations supervisor, stated MnDOT would not allow any additional access to the site, and that the existing access would have to be used.

During the March 17 meeting, Delano City Planner Al Brixius said $8 million had been invested into the West Metro Business Park and that a solar project on adjacent property “would frustrate these investments and create an obstacle for the intended development of the site.”

Delano City Councilman Jack Russek also spoke, stating the issuance of a conditional use permit would negate the planning and investment that had been made.

During an April 4 meeting, the Franklin Township Board voted 2-1 in support of Minnesota Solar’s proposal.

Prior to an April 14 planning commission meeting, Minnesota Solar submitted Plan No. 2, which reduced the footprint of the solar farm and created a 600-foot setback from the property line adjacent to Highway 12.

Wright County Zoning Administrator Sean Riley wrote in his April 14 staff report to the planning commission that “We need better detail on our landscaping plans around the use from this point forward . . . We do need more detail and would need that for this location.”

Following the April 14 meeting, Minnesota Solar requested a continuation to June 9, which was the last meeting when public comments were heard. During that meeting, the planning commission voted 4-3 to direct the county attorney and planning staff to draft tentative findings for approval of Plan No. 2.

Delano City Council adopted a resolution opposing the conditional use permit during a June 21 meeting. Also June 21, the Franklin Township Board reversed course and unanimously approved a resolution recommending the planning commission deny the conditional use permit.

In his staff report for the June 30 planning commission meeting, Riley stated, “Staff want to point out we have not received a full set of revised plans since the last hearing in accord with the requirements for application, since they have revised their plans to move the panels back . . . There are still many unanswered questions since we have not received any updated information.”

Despite that advice, the planning commission voted 4-2 to approve issuance of a conditional use permit during the June 30 meeting.

In the brief, the city contends the planning commission’s decision was unreasonably arbitrary and capricious.

“A decision is arbitrary or capricious ‘if it represents the [decision-maker]’s will and not its judgment,’” the brief states, quoting a 2006 court of appeals ruling.

That ruling also states that if a decision-maker “entirely failed to consider an important aspect of a problem” or “offered an explanation that runs counter to the evidence,” its decision is arbitrary and capricious. Further, a 1989 ruling stated a decision may be arbitrary or capricious if it is “devoid of articulated reasons,” the brief states.

The city also contends the planning commission made its decision despite a lack of evidence.

In conclusion, the brief requests the court to reverse and remand the planning commission’s decision.

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